History
The Evolution of Judicial Review Power in Constitutional Courts
Quick fact
Judicial review—the power of courts to declare laws unconstitutional—was not explicitly written into the U.S. Constitution but was famously asserted by Chief Justice John Marshall in the 1803 case Marbury v. Madison, and since then it has spread to more than 100 countries.
Why this is interesting
We accept that courts can strike down laws as unconstitutional—but where did this power come from, and why do some countries still reject it?
Read the full explanation
Understanding The Evolution of Judicial Review Power in Constitutional Courts
Imagine a referee in a game who judges whether each play follows the rules. In government, a constitution is the rulebook, and the legislature, executive, and judiciary are the players. Judicial review is the referee's power to blow the whistle when a law violates the constitutional rulebook. This power, however, is not inherent; it had to be established and evolved over time. In the early days of the U.S., many believed that the courts could not challenge the legislature's decisions. But in Marbury v. Madison, the Supreme Court claimed this authority for itself, reasoning that since the Constitution is the supreme law, any law conflicting with it must be void. This set a precedent that spread globally, though in different forms.
A deeper explanation
The evolution of judicial review unfolds in stages. First, the idea of constitutional supremacy emerged in the 18th century, influenced by thinkers like John Locke and Montesquieu, who argued that government powers should be limited and separated. The U.S. Constitution established a written framework as fundamental law, but it did not explicitly grant courts the power to enforce it. In Marbury v. Madison, Chief Justice Marshall cleverly established this power by asserting that 'it is emphatically the province of the judicial department to say what the law is.' This grounded judicial review in the very nature of a written constitution. The power expanded in the 19th century through cases like Dred Scott and later through the incorporation of the Bill of Rights. In the 20th century, judicial review became a global phenomenon: countries like Germany and Japan established constitutional courts after WWII, and newer democracies in Europe, Asia, and Africa adopted forms of judicial review. Yet, the power's scope and legitimacy remain contested—debated under labels like "judicial activism" and "judicial restraint." The mechanism works because courts can invalidate laws, but the power is checked by constitutional amendments, political appointments, and public opinion. This evolution shows how judicial review grew from a bold claim into a fundamental pillar of constitutional governance, balancing popular sovereignty with the protection of individual rights.